ITO, Ward - 32(1), Kolkata, Kolkata V. M/s. CAMAC, Kolkata

ITA 795/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2556 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 21-04-2010
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: S K PODDAR
• Keywords: TDS; Set aside
• Section: 40(a)(ia); 194C

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL : A BENC H : KOLKATA [ BEFORE SHRI B.R.MITTAL, HONBLE J.M. & SHRI C. D. RAO, HONBLE A.M .] I.T.A.NO. 795 (KOL) OF 2010 : ASSESSMENT YEA R 2006-07 I.T.O., WARD-32(1), KOLKATA -VS- M/S. CAMAC, KOLKATA [APPELLANT] (PAN: AACFC 0572B) [RESPONDENT] APPELLANT BY : SHRI K.K.TRIPATHI RESPONDENT BY : SHRI S.K.PODDAR O R D E R O R D E R O R D E R O R D E R PER SHRI C.D.RAO, A.M . THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF THE C.I.T.(A)-XIX, KOLKATA DATED 01.01.2010 FOR THE ASSESSMENT YEAR 20 06-07. 2. IN THIS APPEAL, THE REVENUE RAISED THE FOLLOWING ISSUES: 1) FOR THAT ON THE FACTS AND THE CIRCUMSTANCE OF TH E CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE OF RS. 4,80,572/- ON ACCOUNT OF SHORTAGE OF STOCK. 2) FOR THAT THE LD. CIT(A)-XIX / KOLKATA HAS ERRED IN ALLOWING RELIEF TO TUNE OF RS.6,34,055/- ON ACCOUNT OF ADDITION MADE U /S 40(A)(IA) READ WITH SECTION 194C OF THE I.T. ACT, 1961. 3. AT THE TIME OF HEARING BEFORE US, THE LD. D.R., APPEARING ON BEHALF OF THE REVENUE, HAS RELIED ON THE ORDER OF THE AO AND REQU ESTED TO SET ASIDE THE ORDERS OF THE LD. CIT(A) ON BOTH THE ISSUES BY RESTORING THAT OF THE AO. 4. ON THE OTHER HAND, THE LD. COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, HAS SUBMITTED THAT BOTH THESE ISSUES ARE COVERED IN FAV OUR OF THE ASSESSEE IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 IN ITA NO. 505/KOL/09 BY THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL. THEREFORE, HE REQ UESTED TO UPHOLD THE ORDER OF THE LD. CIT(A) BY DISMISSING THE APPEAL OF THE REVENUE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT BOTH THESE ISSUES ARE COVERED IN FAVOUR OF THE 2 ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL DATED 09.10.2009 IN ASSESSEES OWN CASE IN ITA NO.505/KOL/09 FOR THE IM MEDIATELY PRECEDING YEAR, WHEREIN THE TRIBUNAL HAS HELD AS UNDER: 9. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND THE ORDERS OF THE AUTHORITI ES BELOW. WE AGREE WITH THE LD. AR THAT IF THE POLLUTION TESTING IS DONE FREE O F COST, IT IS NOT POSSIBLE TO PRODUCE ANY EVIDENCE ON RECORD THERETO. CONSIDERING THE FACTS THAT THE LD. CIT(A) HAS GIVEN THE DETAILS OF THE CERTIFICATES WA STED, CERTIFICATES ISSUED FREE OF COST, CERTIFICATES DAMAGED AND THE BALANCE CERTI FICATES REMAINED WHICH WERE WASTE DUE TO CHANGE IN TESTING SYSTEM, DETAILS OF W HICH ARE MENTIONED HEREINABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION SUSTAINED BY THE LD. CIT(A) OF RS.46,010/- ON ACCOUNT OF AUTO EMISSI ON TESTING CHARGES AS AGAINST RS.3,95,170/- MADE BY THE AO PURELY ON ESTI MATE BASIS IS JUSTIFIED AND NO INTERFERENCE IN THE ORDER OF THE LD. CIT(A) IS C ALLED FOR AT OUR END. HENCE, WE UPHOLD THE ORDER OF THE LD. CIT(A) BY REJECTING THE GROUND NO.3 OF THE APPEAL TAKEN BY THE ASSESSEE. 11. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND THE ORDERS OF THE AUTHORITI ES BELOW. WE HAVE ALSO CONSIDERED THE DETAILS OF PAYMENTS CONTAINED AT PAG ES 1 TO 14 OF THE PAPER BOOK IN RESPECT OF PAYMENTS MADE TO SK. SALAUDIN, M/S. S .H. MOTOR WORKS, GARAGE AND MD. AZHAR. CONSIDERING THE SAID BILLS AND THE C OPIES OF THE BILLS PLACED ON RECORD, WE FIND SUBSTANCE IN THE ARGUMENTS OF THE L D. AR THAT THE ASSESSEE MADE PAYMENTS TOWARDS LABOUR CHARGES TO SK. SALAUDI N AGGREGATING TO RS.22,610/-, TO M/S. S.H.MOTOR WORKS, GARAGE AGGREG ATING TO RS.38,390/- AND TO MD. AZHAR AGGREGATING TO RS.16,567/- AND ALL THE SE PAYMENTS DID NOT EXCEED AT A TIME RS.20,000/-, RATHER THAN THE SAID PAYMENT S WERE BETWEEN RS.100/-. RS.1,000/- IN EACH CASE, THE DETAILS OF WHICH ARE G IVEN AT PAGES 1,2,6,7 AND 12 OF THE PAPER BOOK. CONSIDERING THE SAID BILLS, WE A RE OF THE CONSIDERED VIEW THAT THE SAID DISALLOWANCE AGGREGATING RS.5,49,210/ - IN RESPECT OF PAYMENTS MADE TO M/S. S.H.MOTOR WORKS - RS.3,29,240/-, SK. SALAUDIN RS.1,63,700/- AND MD. AZHAR RS.56,217/- IS NOT JUSTIFIED AS THE PROVISIONS OF SECTION 194C ARE NOT APPLICABLE IN RESPECT OF THE ABOVE PAYMENTS MADE BY THE ASSESSEE. HENCE, WE DELETE THE SAME. HOWEVER, IN RESPECT OF D ISALLOWANCE OF RS.40,285/-, AS MENTIONED HEREINABOVE, THERE WAS NO SUBMISSION O N BEHALF OF THE ASSESSEE. WE OBSERVE THAT THE LD. CIT(A) HAS MENTIONED THAT T HE ASSESSEE MADE THE SAID PAYMENT OF RS.40,285/- VIDE BILL NO.013161 DATED 17 .7.04 AND THE SAID PAYMENT WAS EXCEEDING RS.20,000/-, THE ASSESSEE WAS REQUIRE D TO DEDUCT TDS UNDER SECTION 194C(3) OF THE INCOME-TAX ACT. SINCE THE AS SESSEE FAILED TO DEDUCT TDS, WE CONFIRM THE ORDER OF THE LD. CIT(A) FOR DIS ALLOWING THE SAME, AS PER SECTION 40(A)(IA) OF THE INCOME-TAX ACT. IN VIEW OF THE ABOVE, WE DELETE THE ADDITION OF RS.5,49,210/- OUT OF THE DISALLOWANCE O F RS.5,89,495/- CONFIRMED BY THE LD. CIT(A). HENCE, GROUND NOS.4,5 AND 6 OF THE APPEAL ARE ALLOWED IN PART BY RESTRICTING THE DISALLOWANCE TO RS.40,285/-. 3 5.1 THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL, WE UPHOLD THE ORDERS OF THE LD. CIT(A), W HO HAS ALSO FOLLOWED THE ORDERS OF THE TRIBUNAL AND DISMISS THE GROUNDS TAKEN BY THE R EVENUE. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSE D. ORDER IS PRONOUNCED IN THE COURT ON 18-06-2010. SD/- SD/- [B.R.MITTAL] [C.D.RAO] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18-06-2010 COPY FORWARDED TO : 1. M/S. CAMAC, 2E, CAMAC STREET, KOLKATA 700 016. 2. I.T.O., WARD-32(1), KOLKATA 3. CIT(APPEAL), KOLKATA 4. CIT, KOLKATA 5. D.R., ITAT, KOLKATA. TRUE COPY, BY OR DER DY. REGISTRAR, ITAT, KOLKATA MST